John Justin GORMAN v John Patrick Gorman & Anor; Estate of the late Jeanette Mary GORMAN [2002] NSWSC 1107

John Justin GORMAN v John Patrick Gorman & Anor; Estate of the late Jeanette Mary GORMAN [2002] NSWSC 1107

The plaintiff was justified in bringing the application because the executors had failed to provide estate accounts for about twenty months and had not satisfactorily pursued sale of the properties in accordance with the settlement, although the plaintiff also contributed to the delay and expense. The proceeding could be brought by Notice of Motion under Pt 68 in the existing proceedings. Costs were therefore apportioned personally, with both defendants to pay three-quarters of the plaintiff's costs, the first defendant to pay half of the second defendant's costs and his own costs, and no order for the balance of the second defendant's costs.

Jurisdiction
Australia
Judgment Date
25 November 2002
Procedural Posture
Equity Division Estate Administration and Costs Application / Costs Determination on Notice of Motion After Settlement in Principle
Outcome
Costs orders made personally against the defendants in part; no order for the balance of the second defendant's costs.
Legal Topics
['costs' 'administration Suit' 'estate Accounts' 'executorial Duties' 'enforcement of Settlement Orders' 'personal Costs Liability of Executors']
['succession' 'equity' 'civil Procedure'] ['costs' 'administration Suit' 'estate Accounts' 'executorial Duties' 'enforcement of Settlement Orders' 'personal Costs Liability of Executors']

Case Brief

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Procedural Posture

Equity Division Estate Administration and Costs Application / Costs Determination on Notice of Motion After Settlement in Principle

Legal Issues

  1. 1 ['Whether the plaintiff was justified in commencing the Notice of Motion to enforce the 8 December 2000 orders and to obtain estate accounts.' 'Whether the application under Pt 68 of the Supreme Court Rules could be brought by Notice of Motion in existing proceedings rather than by separate summons.' 'Whether the defendants, as executors, were dilatory in administering the Estate and furnishing accounts.' 'How costs should be apportioned, including whether any costs should be paid personally and without indemnity from the Estate.']

Ratio Decidendi

The plaintiff was justified in bringing the application because the executors had failed to provide estate accounts for about twenty months and had not satisfactorily pursued sale of the properties in accordance with the settlement, although the plaintiff also contributed to the delay and expense. The proceeding could be brought by Notice of Motion under Pt 68 in the existing proceedings. Costs were therefore apportioned personally, with both defendants to pay three-quarters of the plaintiff's costs, the first defendant to pay half of the second defendant's costs and his own costs, and no order for the balance of the second defendant's costs.

Court Disposition

Costs orders made personally against the defendants in part; no order for the balance of the second defendant's costs.

Orders

  • ["The first and second defendants pay three-quarters of the plaintiff's costs personally." "Half the second defendant's costs be paid personally by the first defendant." 'The first defendant pay his own costs personally.' "I make no order for the balance of the second defendant's costs."]